Citation Nr: 0838122
Decision Date: 11/05/08 Archive Date: 11/18/08
DOCKET NO. 06-00 592 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an initial rating in excess of 30 percent
for asthma.
2. Entitlement to an initial compensable rating for
gastroesophageal reflux disease (GERD).
3. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1984 to March
2004. This case comes to the Board of Veterans' Appeals
(Board) from a January 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida.
The issue of entitlement to an initial compensable rating for
GERD is addressed in the REMAND portion of the decision below
and is REMANDED to the RO via the Appeals Management Center,
in Washington, DC.
FINDINGS OF FACT
1. In July 2007, prior to the promulgation of a decision in
the appeal, the Board received notification from the
veteran's representative that a withdrawal of the appeal for
initial increased rating for asthma was requested.
2. The evidence of record does not support the conclusion
that the veteran has a current diagnosis of tinnitus that is
related to service or to noise exposure therein.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of an appeal on the issue of
an initial increased rating for asthma have been met. 38
U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§
20.202, 20.204 (2008).
2. Tinnitus was not incurred in or aggravated by active duty
service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107
(West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Claim to Withdraw
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be
made by the appellant or by the veteran's authorized
representative. 38 C.F.R. § 20.204 (2007).
In this case, in July 2007, the veteran's representative
submitted a written statement clearly indicating the wish to
withdraw her appeal for the issue of entitlement to an
initial increased rating for asthma.
The veteran has withdrawn the appeal regarding this issue
and, hence, there remain no allegations of errors of fact or
law for appellate consideration. Accordingly, the Board does
not have jurisdiction to review the appeal and it is
dismissed.
VCAA--Tinnitus
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide in accordance with 38 C.F.R. § 3.159(b)(1).
Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice
must be provided prior to an initial unfavorable decision on
a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328
(Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112
(2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows
that the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. See Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the veteran in April 2004 that fully addressed
all notice elements and was sent prior to the initial RO
decision in this matter. The letter informed her of what
evidence was required to substantiate the claim and of her
and VA's respective duties for obtaining evidence.
There is no allegation from the veteran that she has any
evidence in her possession that is needed for full and fair
adjudication of this claim. Under these circumstances, the
Board finds that the notification requirements of the VCAA
have been satisfied as to both timing and content.
With respect to the Dingess requirements, in March 2006 the
RO provided the veteran with notice of what type of
information and evidence was needed to establish a disability
rating, as well as notice of the type of evidence necessary
to establish an effective date. With that letter, the RO
effectively satisfied the remaining notice requirements with
respect to the issue on appeal.
Therefore, adequate notice was provided to the veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b).
Next, VA has a duty to assist the veteran in the development
of the claim. This duty includes assisting her in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
In determining whether the duty to assist requires that a VA
medical examination be provided or medical opinion obtained
with respect to a veteran's claim for benefits, there are
four factors for consideration.
These four factors are: (1) whether there is competent
evidence of a current disability or persistent or recurrent
symptoms of a disability; (2) whether there is evidence
establishing that an event, injury, or disease occurred in
service, or evidence establishing certain diseases
manifesting during an applicable presumption period; (3)
whether there is an indication that the disability or
symptoms may be associated with the veteran's service or with
another service-connected disability; and (4) whether there
otherwise is sufficient competent medical evidence of record
to make a decision on the claim. 38 U.S.C. § 5103A(d);
38 C.F.R. § 3.159(c)(4).
With respect to the third factor above, the Court of Appeals
for Veterans Claims has stated that this element establishes
a low threshold and requires only that the evidence
"indicates" that there "may" be a nexus between the
current disability or symptoms and the veteran's service.
The types of evidence that "indicate" that a current
disability "may be associated" with military service
include, but are not limited to, medical evidence that
suggests a nexus but is too equivocal or lacking in
specificity to support a decision on the merits, or credible
evidence of continuity of symptomatology such as pain or
other symptoms capable of lay observation. McLendon v.
Nicholson, 20 Vet. App. 79 (2006).
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993).
The RO has obtained a VA examination to determine the nature
and etiology of her tinnitus and the veteran has submitted
private medical records. While she indicated on her VA Form
9 submitted in December 2005 that she wanted a Travel Board
hearing, that request was withdrawn in a July 2007 statement
submitted by her representative.
Significantly, neither the veteran nor her representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained.
Hence, no further notice or assistance to the veteran is
required to fulfill VA's duty to assist in the development of
the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd,
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
In addition, inasmuch as the claim for an initial increased
rating for asthma was withdrawn, the provisions of the VCAA
are not for application. Hence, no further notice or
assistance to the appellant is required to fulfill VA's duty
to assist the appellant in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384
(Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143
(2001); see also Quartuccio v. Principi, 16 Vet. App. 183
(2002).
Claim for Service Connection
The veteran claims entitlement to service connection for
tinnitus.
Under the relevant laws and regulations, service connection
may be granted for a disability resulting from disease or
injury incurred in or aggravated by active service. 38
U.S.C.A. §§ 1110, 1131. If a chronic disease is shown in
service, subsequent manifestations of the same chronic
disease at any later date, however remote, may be service
connected, unless clearly attributable to intercurrent
causes. 38 C.F.R. § 3.303(b). However, continuity of
symptoms is required where a condition in service is noted
but is not, in fact, chronic or where a diagnosis of
chronicity may be legitimately questioned. 38 C.F.R. §
3.303(b).
Overall, the Board must determine whether the evidence
supports the claim or is in relative equipoise, with the
appellant prevailing in either case, or whether the
preponderance of the evidence is against the claim, in which
case, service connection must be denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The veteran has shown via lay statements that she was exposed
to high pitched noise during service. Otherwise, no noise
exposure or hearing problems were documented in her service
records.
The veteran underwent a VA audiological examination in
December 2004. At that time, she was not diagnosed with
tinnitus because while the veteran did "report high-pitched
bilateral tinnitus that occurs an average of once per month
for several minutes per episode," it was determined by the
examiner that that amount of tinnitus was not clinically
significant.
No diagnosis of the veteran otherwise having clinically
significant tinnitus has been made in the medical evidence of
record. Without a diagnosed disability, the claim for
service connection must be denied. See 38 U.S.C.A. §§ 1110;
Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress
specifically limits entitlement for service-connected disease
or injury to cases where such incidents have resulted in a
disability). "In the absence of proof of a present
disability there can be no valid claim." Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992).
With regards to the claim for service connection, in
rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v.
Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may
affect the credibility of testimony, it does not affect
competency to testify").
The veteran is competent to report symptoms because this
requires only personal knowledge, not medical expertise, as
it comes to him through his senses. Layno v. Brown, 6 Vet.
App. at 470. As a lay person, however, he is not competent
to offer opinions on medical diagnosis or causation, and the
Board may not accept unsupported lay speculation with regard
to medical issues. See Moray v. Brown, 5 Vet. App. 211
(1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992).
In this case, the Board attaches greater probative weight to
the clinical findings of skilled, unbiased professionals than
to the veteran's statements. See Cartright v. Derwinski, 2
Vet. App. 24, 25 (1991) (holding that interest in the outcome
of a proceeding may affect the credibility of testimony).
In light of the above discussion, the Board concludes that
the preponderance of the evidence is against the claim for
service connection and there is no doubt to be otherwise
resolved. As such, the appeal is denied.
ORDER
The claim for entitlement to an initial increased rating for
asthma is dismissed without prejudice.
Service connection for tinnitus is denied.
REMAND
The veteran claimed in the July 2007 statement submitted by
her representative that her GERD was now productive of
"nearly constant regurgitation pyrosis and sub-sternal
pain." This narrative of the symptoms of GERD is more
severe than that indicated at the most recent examination
undertaken in December 2006. The statement as evidence
regarding the severity of her GERD and as relevant to her
claim for an initial compensable rating must first be
considered by the agency of original jurisdiction as no
waiver of their initial jurisdiction accompanied its receipt
by VA. As a result of the foregoing, the issue of
entitlement to a compensable rating for GERD must be remanded
both because the veteran has indicated that her condition is
more severe than at the time of the last VA examination and
she is therefore entitled to a new examination and also
because the evidence submitted was done so without a waiver
of original jurisdiction.
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a VA
examination to determine the current
severity of her GERD. Have the examiner
review the entire claims file in
conjunction with the examination and make
a note of such review in the examination
report. Have the examiner conduct all
necessary tests to determine the severity
of her GERD disability, including
specifically as regards to symptoms of
epigastric distress as per dysphagia,
pyrosis, and regurgitation, and substernal
or arm or shoulder pain.
2. Review the examination report and if
it is in any way inadequate, return it for
revision.
3. Thereafter, readjudicate the claim on
appeal, to include all additional evidence
submitted since the January 2007
supplemental statement of the case. If
the claim remains denied, issue the
veteran a supplemental statement of the
case and allow an appropriate time for
response.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion as to the outcome of this case.
The appellant need take no action until so informed. The
purpose of this REMAND is to ensure compliance with due
process considerations.
The purpose of the examination requested in this remand is to
obtain information or evidence (or both) which may be
dispositive of the appeal. Therefore, the veteran is hereby
placed on notice that pursuant to 38 C.F.R. § 3.655 (2007)
failure to cooperate by attending the requested VA
examination may result in an adverse determination. See
Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991).
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. All
claims remanded by the Board or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs